Whistleblowing junior doctor scores victory in Court of Appeal

A whistleblowing junior doctor who said that his career was destroyed by Health Education England (HEE) has scored an important victory in the Court of Appeal.

Chris Day claimed that HEE treated him unfairly after he blew the whistle on unsafe staffing levels at Lewisham and Greenwich NHS Trust, where he was working as a specialist registrar in emergency medicine.

In May 2016 his case against HEE, which arranges junior doctors’ training contracts, was thrown out by the Employment Appeal Tribunal. It ruled that he could not claim whistleblower protection against HEE because the trust with which he was placed, not HEE, was his employer. In the wake of the ruling, the UK government promised to look again at the gap in whistleblower protection for junior doctors.[1]

Now three senior judges at the Court of Appeal have held that the appeal tribunal was wrong to decide that the trust was his sole employer. The judges ruled that the HEE—which arranges junior doctors’ training contracts, pays a substantial part of their salaries, and reviews their progress in training—could also be considered an employer. In an agency arrangement, both the “introducer” and the “end user” could be an employer under the wording of the Employment Rights Act 1996, the judges said.

Day’s case against HEE was struck out by the original tribunal without any consideration of the evidence, and the tribunal’s action was upheld by the Employment Appeal Tribunal.

But Day decided to take the case, which was crowdfunded by more than 1000 doctors, to the Court of Appeal. The appeal court judges have now sent the case back to a new employment tribunal to decide, as a preliminary issue, whether HEE substantially determined Day’s terms of engagement, and was therefore an employer.

“This decision is a great achievement for our client and all who supported him,” said Tim Johnson, Day’s solicitor. “HEE plays a key role in junior doctors’ careers. HEE has tried to argue itself out of whistleblowing liability without the evidence being properly scrutinised.

“There will now be full disclosure of the relevant documents and the evidence will be heard in full at a preliminary hearing to determine whether junior doctors have whistleblowing protection against HEE.”

See also Junior doctors will have whistleblowing protection added to contracts BMJ 2016;354:j4423; and Can junior doctors feel safe to blow the whistle? BMJ 2016;354:j4215.